Citation Nr: 9924599
Decision Date: 08/30/99 Archive Date: 09/08/99
DOCKET NO. 98-10 953 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUE
Entitlement to service connection for a psychiatric
disability, to include post-traumatic stress disorder.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Solomon J. Gully, IV, Associate Counsel
INTRODUCTION
The veteran had active service from April 1988 to May 1992.
This appeal to the Board of Veterans' Appeals (Board) arises
from an August 1993 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in San Diego,
California, which denied service connection for a left foot
disability, a back disability, and a psychiatric disability,
to include post-traumatic stress disorder (PTSD). A February
1996 Board decision denied the veteran's claims for service
connection for a left foot disability and a back disability,
on the basis that the claims were not well grounded.
Accordingly, these claims are not before the Board or the VA
at this time. The veteran's claim of entitlement to service
connection for a psychiatric disability, to include PTSD, was
remanded to the RO for additional development. Accordingly,
this issue is before the Board at this time.
FINDING OF FACT
The claim of entitlement to service connection for a
psychiatric disability, to include PTSD, is not plausible, as
there is no competent medical evidence of record causally
linking a chronic psychiatric disability to service.
CONCLUSION OF LAW
The veteran's claim for service connection for a psychiatric
disability, to include PTSD, is not well-grounded.
38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Service medical records are negative for treatment for a
chronic psychiatric disability. On a March 1989 Report of
Medical History, the claimant specifically denied such
symptoms as frequent trouble sleeping, depression or
excessive worry or nervous trouble of any sort. An April
1992 mental health consultation report notes that the
veteran's medical and service records had been reviewed. He
had been removed from work due to the sensitivity of the
facility, and the veteran's recent acting out. The veteran
reported that he had difficulty adapting to the Navy since
his entrance in 1988, and indicated that two weeks after boot
camp he was sexually harassed by a chief petty officer. This
petty officer was appropriately disciplined. The record
notes that the veteran made a suicidal gesture approximately
five weeks earlier when he took four to five Tylenol, and
subsequently threw up. The veteran further reported making a
suicidal gesture in October 1988, when he drove recklessly
down the highway at 90 miles per hour. He explained that
while he initially intended to ram into a concrete barricade,
he later decided that "it was not worth it."
The veteran reported that he attempted to gather information
to reveal fraud in the command in 1990. He stated that this
information was found and destroyed, and that he was
"blacklisted." He explained that he wanted to remain
stationed in Europe, but was transferred to his current
command six months earlier. He reported that feelings of
depression had increased since that time. While he attempted
counseling to adapt to the navy, this did not help him.
The veteran noted that he joined the navy at age 17, because
his parents could not afford to support him. He was
currently engaged to a woman five years his senior, who he
had known for three years. He stated he slept poorly with
initial insomnia, intermittent awakening, nightmares, and
weight variations up and down of five to ten pounds. The
veteran explained that if given an order he disagrees with,
he becomes argumentative, harbors a lot of resentment, and
sometimes procrastinates until "possibly getting his own
way." A detailed background was recorded as to his pre-
service adjustment.
The diagnostic impression was AXIS I - Occupational problem -
not unfitting for duty; AXIS II - Personality disorder not
otherwise specified with dependent, passive aggressive
features - existed prior to enlistment, unsuitable for U.S.
Navy; and AXIS III - None known. The examiner reported that
the veteran was not mentally ill, but manifested a
longstanding disorder of character and behavior of such
severity as to render him incapable of serving adequately in
the navy. It was noted that the veteran did not require, and
would not benefit from, hospitalization.
On the Report of Medical History form completed by the
veteran in conjunction with his April 1992 separation
examination, he wrote that he was "treated for depression"
at the Fleet Mental Health Clinic on the date of the above
noted psychiatric evaluation. The examining physician noted
on the summary and observation section of the report that the
veteran was "treated during current enlistment" for
depression. The clinical evaluation portion of the
separation examination is negative for findings of a chronic
psychiatric disability.
In September 1992, the veteran filed a claim of entitlement
to service connection for various disabilities, including a
psychiatric disorder.
During a November 1992 VA psychiatric examination, performed
in conjunction with the veteran's claim, the veteran reported
that he joined the navy at age 16, but did not expect to go
to sea. He related that he became somewhat anxious when he
was shipped to London, England to work in the Naval Force
office, and explained that he had "lots of problems" when
he was subsequently assigned to ship duty. He reported that
he "tried to bring charges of fraud and abuse on the
command," and indicated that he may have been
"blacklisted."
The veteran stated that he had been unemployed since his
discharge from service, and related that he and his fiancée
were "having a lot of problems." The veteran gave a
history of recently feeling "depressed on and off," and
feeling helpless and hopeless. He further reported
occasional crying spells, loss of appetite, and decreased
energy, self-esteem, and motivation. He denied current
suicidal ideations. The veteran stated that while he
"overdosed on half a bottle of aspirin" in service, he did
not intend to kill himself. He explained that he did it to
"get him off the ship." He denied experiencing any
psychotic symptoms, or any persistent troublesome anxiety
symptoms. There was no history of psychiatric
hospitalization.
Mental status examination revealed no evidence of any formal
thought disorder, or any psychotic signs or symptoms. His
affect was full, reactive and appropriate to his
verbalizations. He denied any current suicidal ideation,
plan, intent, desire, or impulses, and denied any plans or
impulses to harm others. His insight and judgment were good.
The diagnostic impression was AXIS I - 1. Adjustment
disorder with depressed mood. 2. Dysthymia. 3. Possible
major depressive episode.; AXIS II - Probable obsessive-
compulsive and dependent personality traits; AXIS III - Foot
and back pain, and sinus problems; AXIS IV - Current
psychosocial stressors : Moderate to severe, unable to find
job, problems with fiancée, etc.; AXIS V - Current global
assessment of functioning : 80. Highest global assessment of
functioning past year : 80.
The examiner noted that the veteran gave a history of
discharge from the Navy after four years of service because
of difficulty adjusting to being on board a ship. The
veteran further reported a four year history of chronic low-
grade depressive symptoms. He stated that he had been unable
to obtain a job following his discharge from service, and
indicated that he had continued to experience symptoms of
depression which were more severe than the longstanding
symptoms of depression. The examiner noted that it was
questionable whether the veteran experienced a "full-blown
major depressive episode," but indicated that he did exhibit
some symptoms that would be amenable to either psychotherapy
or antidepressant medication. In conclusion, he recommended
that the veteran be afforded access to the VA system in order
to treat his "low-grade depressive symptomatology."
Consequently, an August 1993 rating decision denied the
veteran's claim of entitlement to service connection for a
psychiatric disorder. The veteran filed a notice of
disagreement (NOD) with this decision the following month,
and submitted a substantive appeal (Form 1-9) in December
1993, perfecting his appeal. In the substantive appeal, the
veteran stated that he was a victim of sexual abuse "at the
hands of a navy electronic warfare SW qualified chief" while
in service, and indicated that he began to feel depressed and
confused, and distrusted authority figures as a result of
this incident. He further maintained that the incident
"directly contributed to [his] PTSD symptoms...primarily
depression." The veteran reported that he received private
medical treatment for his alleged psychiatric disorder in
service. He stated that he received VA medical treatment
subsequent to service, and that depression and PTSD were
found to be related to the sexual assault in service. He
indicated that Nortriptyline, an antidepressant, was
prescribed to treat these disorders.
During a January 1994 personal hearing, the veteran testified
that he began receiving treatment for his psychiatric
disability from a VA physician in May or June 1993.
Transcript (T.) at 6. He opined that his psychiatric
disability had its onset following his sexual assault in
service by a chief petty officer. T. at 6-7. The veteran
could not recall the chief petty officer's name, or whether
charges were brought against him. T. at 6-7. While he was
told that the man would be administratively discharged, he
was unsure whether this actually occurred. T. at 7. This
incident took place four years prior to the veteran's
discharge from service, and he explained that it resulted in
a distrust of his superior officers. T. at 7.
According to the veteran, following his discharge from
service, he has received treatment for depression, low self-
esteem, and difficulty working with people in positions of
authority. T. at 8-9. Further, he has been prescribed
Nortriptyline to treat his psychiatric disorder. T. at 8-9.
The veteran indicated that he periodically has problems with
anger, and loses his temper. T. at 9. He has a "pretty
small group" of friends, and has no problem making friends.
T. at 9.
The veteran reported that he was unemployed for nine months
following his discharge from service. T. at 10. He related
that he was currently employed, and recently received a
raise. T. at 9-10. He denied suicidal ideations. T. at 10.
The veteran reported that he has a problem dealing with
supervisors, or people who have control or power over him.
T. at 11. He explained that this has not affected his job
performance, but opined that it might have had he not
received counseling. T. at 11.
A January 1994 hearing officer's decision continued the
denial of service connection for a psychiatric disorder.
The Board remanded the case for further development in a
February 1996. Therein, the Board noted that the November
1992 VA psychiatric examination report appeared to be based
on the history provided by the veteran, rather than on the
claims file, and as such, it was unclear as to whether the
diagnosed disabilities were related to the veteran's period
of service. Consequently, the Board directed the RO to
schedule a reexamination of the veteran. Further, the Board
instructed the RO to attempt to obtain medical records noted
by the veteran in his December 1993 substantive appeal.
Consequently, the RO sent a development letter to the veteran
in June 1997, requesting that he supply additional
information, and scheduled a VA psychiatric examination for
later that month. A computer generated report dated in June
1997 notes that the veteran canceled the VA examination,
indicating that he moved to Illinois. The veteran failed to
respond to the development letter. After obtaining the
veteran's address in Illinois, the RO again sent a
development letter to the veteran in January 1999, and
scheduled another VA examination. The veteran failed to
respond to the second development letter, and failed to
report for the February 1999 VA examination.
In May 1999, the RO denied the veteran's claim for service
connection for a psychiatric disorder, to include PTSD, on
the basis that the veteran's disability was neither incurred
in service, nor related to service by competent medical
evidence.
Analysis
Under the provisions of 38 C.F.R. § 3.655(b), when a claimant
fails to report for an examination scheduled in conjunction
with an original compensation claim, the claim shall be
adjudicated based on the evidence of record. In light of
§ 3.655, and the veteran's failure to appear for VA
psychiatric examinations in June 1997 and February 1999, this
claim will be rated based on the evidence of record.
The threshold question is whether the veteran has presented
evidence of a well-grounded claim. The Court has defined a
well-grounded claim as a claim which is plausible, that is
meritorious on its own, or is capable of substantiation. If
he has not filed such a claim, the appeal must fail.
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78,
81 (1990). The United States Court of Appeals for the
Federal Circuit has affirmed the principle that if an
appellant fails to submit a well-grounded claim, the VA is
under no duty to assist in any further development of the
claim. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
In order for a claim to be well grounded, there must be a
current disability which is related to an injury or disease
which was present during service. Rabideau v. Derwinski,
2 Vet. App. 141, 143 (1992). Case law provides that although
a claim need not be conclusive to be well grounded it must be
accompanied by evidence. A claimant must submit some
supporting evidence that justifies a belief by a fair and
impartial individual that the claim is plausible. Dixon v.
Derwinski, 3 Vet. App. 261, 262 (1992); Tirpak v. Derwinski,
2 Vet. App. 609, 611 (1992).
Where the determinative issue involves a question of medical
diagnosis or medical causation, competent medical evidence is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993). Where the determining
issue is a question of medical diagnosis or medical
causation, lay assertions cannot constitute evidence to
render a claim well grounded under 38 U.S.C.A. § 5107(a). If
no cognizable evidence is submitted to support the claim, the
claim cannot be well grounded.
The Court has held that, in general, a claim for service
connection is well grounded when three elements are
satisfied. First, there must be competent evidence of a
current disability (a medical diagnosis). Second, there must
be evidence of an occurrence or aggravation of a disease or
injury incurred in service (lay or medical evidence). Third,
there must be a nexus between the in-service injury or
disease and the current disability (medical evidence).
Caluza v. Brown, 7 Vet. App. 498 (1995). The Court has
further held that the second and third elements of a well-
grounded claim for service connection can also be satisfied
under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a
condition was "noted" during service or an applicable
presumption period; (b) evidence showing post-service
continuity of symptomatology; and (c) medical or, in certain
circumstances, lay evidence of a nexus between the present
disability and post-service symptomatology. See 38 C.F.R.
§ 3.303(b); Savage v. Gobber, 10 Vet. App. 488, 495-97
(1997). Alternatively, service connection may be established
under 38 C.F.R. § 3.303(b) by evidence of (i) the existence
of a chronic disease in service or during an applicable
presumption period and (ii) present manifestations of the
same chronic disease. Ibid.
In this case, service medical records are negative for a
diagnosis of a chronic acquired psychiatric disability. In
fact, an April 1992 mental health consultation report
specifically notes that the veteran was not mentally ill, but
"manifested a longstanding disorder of character and
behavior." A personality disorder was diagnosed; however,
this is not a disability for purposes of VA compensation
benefits. 38 C.F.R. § 3.303(c) (1998). While the a
physician noted on the Report of Medical History at the time
of the April 1992 separation examination that the appellant
had a history of "treatment" for "depression" in service,
that notation was clearly based upon the claimant's statement
of medical history which was in error. The service medical
records show only an examination, not treatment, on the date
the appellant claimed, and that examination produced the
diagnosis of personality disorder, not a diagnosis of
depression. Thus, the notation by the physician on the
Report of Medical History was no more than transcription of
the veteran's statements of medical history, unenhanced by
the application of medical expertise. Such a transcription
can not serve as medical evidence of a diagnosis or as a
medical opinion as to nexus between the diagnosis and
service. LeShore v. Brown, 8 Vet. App. 406 (1995). The
Board notes that the actual clinical evaluation of the
claimant on the separation examination was negative.
Several diagnoses were made on VA examination in November
1992, including on Axis I: adjustment disorder with depressed
mood, dysthymia, possible major depressive episode, and on
Axis II: probable obsessive-compulsive and dependent
personality traits. These diagnoses, apart from the Axis II
diagnoses which concern personality disorders, are sufficient
to supply the first element of a well grounded claim, that is
the diagnosis of a current disability. In this context,
however, the Board notes that the record is devoid of a
diagnosis of PTSD by a party with medical expertise. Thus,
the claim for service connection for PTSD is not well
grounded for lack of a demonstration of a current disability.
Given the entries in the service medical records and the
appellant's lay assertions of manifestations, the Board will
deem the second element of a well-grounded claim to have been
satisfied. The remaining question presented by the record is
whether the third element of a well-grounded claim has been
established: a causal relationship between currently
diagnosed disability and disease or injury incurred or
aggravated in service.
The Board must point out first that the record fails to
establish a diagnosis of chronic psychoses within the one
year of the veteran's discharge from service. While the
veteran gave a history of chronic low-grade depressive
symptoms, and reported that these symptoms had increased in
severity since his discharge from active duty, these
subjective complaints were unsupported by actual clinical
findings on mental status examination. Even assuming
arguendo that the diagnosis of "possible major depressive
episode" could be construed as the diagnosis of a chronic
psychiatric disorder, there is no evidence that such a
disorder was manifested to a compensable degree. In fact,
the November 1992 VA examination report notes a Global
Assessment of Functioning (GAF) score of 80, which is
consistent with "transient and expectable reactions to
psychosocial stressors," and represents "no more than
slight impairment" under DSM-IV.
An adjustment order with depressed mood is, by definition,
not a chronic psychiatric disability. In any event, no party
with medical expertise linked the adjustment disorder to
service. The VA examination produced a diagnosis of
dysthymia, however, the Board would rule initially that the
examiner did not relate this diagnosis to service. The
report appears to link dysthymia (as well as the adjustment
disorder) not to service related causes, but to nonservice
connected causes such as inability to find a job and problems
with his fiancée. Nor can the veteran provide the necessary
evidence to establish a causal link between dysthymia and
service with his own testimony or assertions. The Court has
made clear that a lay party, like the veteran, is not
competent to provide probative evidence as to matters
requiring expertise derived from specialized medical
knowledge, skill, expertise, training, or education.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1994). In
this case, based on a review of the available evidence of
record, no competent medical provider has associated the
veteran's acquired psychiatric disabilities to his active
service.
The Board has considered the record in light of Savage v.
Gober, supra. There is no doubt that the veteran is
competent to describe certain manifestations. He is also
competent to provide evidence of continuity of symptomatology
of the manifestations perceivable to a lay party. However,
he is not competent to associate his current complaints to a
specific diagnosis. Thus, he can not establish with his lay
evidence he has experienced a continuity of symptoms of a
specific disability back to his active service. As explained
above, a well-grounded claim requires medical evidence of a
nexus between service and a current disability. Epps, supra.
To be well grounded, a claim must be accompanied by evidence
on more than a purely speculative basis for granting
entitlement. Dixon, supra. The medical evidence of record
only supports the denial of this claim. Because the veteran
has not shown evidence of a nexus between a psychiatric
disability and service, the claim is not well grounded and
must be denied.
In Robinette v. Brown, 8 Vet. App. 69 (1995), the Court
stated that if a claimant alleges the existence of medical
evidence that, if true, would have made the claim plausible,
the VA would be under a duty under 38 U.S.C.A. § 5107(a) to
advise him to submit such evidence to complete their
application for benefits. The Court has also held, however,
that the obligation exists only in limited circumstances
where the veteran has referenced other known and "existing"
evidence. See Epps v. Brown, 9 Vet. App. 341, 344 (1996).
In this case, the Board remanded the case in February 1996,
and directed to RO to obtain medical treatment records
referenced in the veteran's December 1993 substantive appeal.
This was also the same evidence the appellant mentioned at
his hearing. Consequently, the RO specifically requested
that the veteran provide additional information regarding
date and place of his treatment of his psychiatric disability
in June 1997 and January 1999, but he failed to respond. The
Court has held that the duty to assist is not exclusively a
"one-way street." Wood v. Derwinski, 1 Vet.App. 190
(1991). Therefore, the Board can not find that VA was under
further obligation to search for records when the claimant
failed to identify where the VA must conduct its search.
Under the authority of Holbrook v. Brown, 8 Vet. App. 91
(1995), the Board will also rule in the alternative on the
merits. In this context, the Board must first point out that
this matter was remanded to obtain additional evidence,
including records of alleged treatment and a VA examination.
The record shows the RO fully complied with the Board's
requests, however, it is equally clear that the veteran
failed to cooperate. He did not respond to requests for
information regarding the dates and places of alleged post
service treatment. He consistently failed to appear for
scheduled VA examinations, despite diligent efforts by the RO
to obtain a current address and schedule examinations.
Therefore, the Board finds that VA has discharged its duty to
assist to the extent the cooperation of the veteran
permitted. The Board further notes that as there is no
diagnosis of PTSD, including PTSD based upon personal
assault, and as the claimant has been completely unresponsive
to the efforts of the RO to develop pertinent evidence,
further development as to this claim in light of Patton v.
West, 12 Vet. App. 272 (1999), is not warranted.
As the Board noted at the time of the Remand, the diagnoses
rendered at the time of the 1992 VA examination were clearly
based upon statements of history supplied by the claimant
that are at material variance with what the service medical
records disclosed. The claimant, for example, reported he
entered the navy at age 16, whereas he was 17. He did not
accurately relay his medical history in service and omitted
the fact that the psychiatric evaluation in service produced
a diagnosis of personality disorder. His statements
addressing his pre-service adjustment to the VA examiner
failed to note many of the problems itemized in the
evaluation in service. It is also notable that the reported
findings on the mental status examination by VA in 1992 are
negative. Thus, the only basis for the diagnoses rendered by
the examiner was the history supplied by the claimant.
Accordingly, as that history was clearly self serving and
inaccurate, the Board attaches very limited, if any,
probative weight to the 1992 VA examination. Further
supporting this determination is conduct of the claimant
after the Board remanded the case. He has failed to appear
for examination that would provide an opportunity for the
physician to assess the current findings in the context of an
accurate history. This behavior leaves the strong inference
that the claimant is evading the examination because he knows
it would not support his claim. He has also failed to
provide VA with the details of his alleged treatment. Once
again, the Board is at a loss as to why the claimant would
fail to respond to the requests for records if they actually
existed and supported his claim.
By contrast to the VA examination, the service department
evaluation in April 1992 was founded upon a review of the
service medical and administrative records. It also
contained a far more detailed and accurate history of the
disability, including the appellant's pre-service history.
The examiner thus had an accurate history to compare with the
current findings, unlike the VA physician. The rationale
offered by the service department examiner was compelling.
Therefore, the Board finds the April 1992 examination to be
entitled to great probative weight. This places the clear
weight of the evidence against the claim and thus the benefit
of the doubt doctrine is against the claim.
ORDER
Entitlement to service connection for a psychiatric
disability, to include post-traumatic stress disorder, is
denied.
Richard B. Frank
Member, Board of Veterans' Appeals